Negligence Flashcards
Elements of negligence claim
Duty of care?
Breach of duty?
Causation (factual/legal)?
Damage?
Misdiagnosis of birth defect - damages?
Cost of care.
Not emotional distress.
Failed sterilization leads to pregnancy - damages?
None.
Degree of care?
As exercised by reasonably prudent person in same circumstances.
Objective test.
No allowance for subjective ability.
Degree of care: Exceptions to reasonable person test
Superior skill / knowledge - reasonable person with that skill
Physical characteristics - when relevant + expected to take reasonable precautions.
Children’s liability
0-4: no negligence
5-18: care of reasonable child of similar age, experience and intelligence under circumstances.
EXC: Child engaged in adult activity
Professional liability
Exercise skill and knowledge normally possessed by other members of profession in good standing in similar communities. (empirical, not subjective) Conform!
Premises liability: undiscovered trespasser
No duty (unforeseeable victim)
Premises liability: Discovered/anticipated
“Known man-made death traps”
(1) Artificial condition
(2) highly dangerous
(3) concealed
(4) known to D
Premises liability: Licensees (no econ benefit to D)
“Known traps”
(1) Concealed
(2) known to D
Premises liability: Invitee (econ benefit or open to public)
“Reasonably known traps”
(1) Concealed
(2) Known or should have known
NY Standard on premises liability
Reasonable prudence in the circumstances - depends on type of entrant.
Premises liability: Police and firefighters
No recovery when risk is inherent to job.
NY No limitation, except against employer or colleague
Child trespasser
Reasonable prudence re artificial conditions.
Increases due to “attractive nuisance doctrine”.
Statutory standard of care
(Borrow criminal statute)
Conditions:
(1) P member of class that statute protects
(2) Accident in class of risks that statute forbids
NOT APPLICABLE:
If compliance more dangerous than violation
or impossible
Affirmative duty to act?
No. EXC: Pre-existing relationship D caused peril Duty: Reasonable, no heroics
Gratuitous rescuer
Liable for negligent damage!
NY Good Samaritan law applies for simple negligence; protects business from resuscitation by employees
Negligent infliction of emotional distress - 3 cases
(1) Near miss: D put P in danger zone + fear + physical manifestation of distress
(2) Bystander to death or serious injury + close family member
* NY* in zone of danger
(3) Relationship - transactional (false positive HIV)
Breach - elements
(1) factual act/omission
(ESSAY: “P will allege that breach was…”)
(2) theory why below standard
(“P will argue that act was unreasonable b/c…”)
Res ipsa - elements
(a) Accident of type normally associated with negligence
(b) of person in D’s position [had control of process]
(c) causation
Multiple defendants, merged causes - causation test?
“Substantial factor” (rather than “but for”).
Each could have caused harm independently (but in reality merged and caused damage together).
Unascertainable cause (eg. two quail hunters) - liability?
Burden of proof on defendants to show which is liable. If unsuccessful - both are liable.
Proximate cause in “direct cause case”
Foreseeability.
Not freakish/bizarre results even when immediate.
“Indirect cause cases” - 4 examples of liability
- Intervening: medical malpractice
- Intervening: negligent rescue
- Intervening: protection/reaction forces (eg. stampede)
- Subsequent disease/accident
Look for: connection btwn breach and damage.
Eggshell skull principle vs foreseeability?
Initial injury must be foreseeable, then D liable for all damage even if unforeseeable.
Insurance payments deducted from damages?
MBE: No.
NY Yes!
Equitable remedies (injunctions) - when granted?
No adequate "remedy at law" and Protectable right and Enforceable (no complex supervision...) and BALANCE OF HARDSHIP in P's favor
Equitable remedies - 3 defenses
- P’s unclean hands
- Laches (D relied on acquiescence)
- 1st amendment (can’t stop free speech)
Preliminary injunction - when?
freeze situation
- Likelihood of success on merits
and - Prevent irreparable harm.
Affirmative defenses for negligence - two types
- “Classic contributory” - P making proximate contribution completely barred from recovery [ABOLISHED, RARELY USED]
- “Comparative negligence” - damages deducted acc to relative contribution.
“Comparative negligence” - two types
- Pure: mathematical, doesn’t matter how high P’s portion is. (NY) [ASSUME ON MBE]
- “Modified/partial” - if P’s contribution >50% no recovery [ONLY WHEN P GUILTY OF CRIME]
Assumption of risk in sporting activities
NY
Duty for recklessness, not reasonable care.
Implied assumption of risk
Reduces recovery.
Conditions: D knew of risk, voluntary consented by conduct to bear risk
Strict liability - injury caused by animal?
Domesticated - no, unless known to be vicious
Wild - always
Strict liability - abnormally dangerous activity - conditions
Foreseeable risk of serious harm, even when care exercised
and
Not in common usage in community
Strict liability - product liability - conditions
D is merchant dealing in goods of same type (incl. manufacturer, wholesaler, lessor)
and
Defective product
and
Not altered by P
and
D making foreseeable use (even if unintended)
Defective product - 3 types
- Manufacturing defect: differs from other products on assembly line
- Design defect: could be built (a) safer, (b) cost-effectively, and (c) practically.
- Information defect: inadequate warning for inherent risk.
Defective product - conformity to regs
Failure to conform - proves defective design.
Conforms - non-conclusive evidence only
Defense in strict liability claim
Assumption of risk Comparative fault (percentages...)
Strict liability prima facie case
- D’s activity imposes absolute duty to make safe
- Dangerous aspect is cause of injury
- Damage
Nuisance - element
Ability to use property disturbed to unreasonable degree.
Car owner liability for user?
MBE: No, except if running errand for owner.
NY Vicarious liability when driving with permission (and no-fault insurance applies)
Parent liability for child’s actions?
MBE: No
NY up to $2500
Spouse claim for damages?
“Loss of consortium”: services, society, marital relations.
Workers comp: Liability? Damages?
Employer strictly liable.
No pain & suffering
Employee cannot sue in court
Workers comp: Secondary claims
Only employer can sue another on-site contractor or machine manufacturer.
Workers comp: Independent contractor?
No, only employee.
Workers comp: What is not covered?
Due to own intoxication;
Self-inflicted;
Voluntary off-duty athletic activity
(Illegal acts on the job are covered!)
